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Monday, July 23, 2012

Emmert v. Penn State creates troubling precedent

NCAA President Mark Emmert set sail on dangerously uncharted waters when he handed down history’s most punitive sanctions on Penn State.

While no one disputes that harsh sanctions against the school were justified in the wake of the worst scandal in the history of college sports, there is plenty to disagree with in how those sanctions were formulated and the manner in which they were imposed.

In two strokes of a pen, the NCAA created a dangerous new precedent that allows its President to “negotiate” plea bargains with member schools while holding a gun to their head during the proceedings.

First, the NCAA Executive Committee—a group consisting of 20 members, 16 with voting privileges—authorized President Emmert to “to enter into a consent decree with Penn State University that contains sanctions and corrective measures related to the institution’s breach of the NCAA Constitution and Bylaws and core values of intercollegiate athletics based on the findings of the Freeh Report and Sandusky criminal trial.”

The by-law cited as authorization for such action states that the Executive Committee may “act on behalf of the Association by adopting and implementing policies to resolve core issues and other Association-wide matters.”

Penn State was allowed to cut a deal that lets them walk and lets the NCAA say that they “did something.”

I’m not certain that authorizing the President to completely bypass the enforcement process falls within the powers granted by the clause above. In what way does granting the President sweeping new powers—even in a unique case such as this—serve to adopt and implement policy?

Second, Emmert himself apparently “negotiated” a consent decree with Penn State officials. This, only six months after the death of Joe Paterno, eight months since Jerry Sandusky was arrested. Weeks after Sandusky’s conviction and days after the release of the Freeh Report, the NCAA was negotiating from a position of such strength that Penn State had no choice but to plead out.

Emmert named the tune. Penn State danced, or else.

Here’s the real treachery in the waters that lie ahead, sports fans: With this new process in place, member schools finding themselves in impossible public relations situations regarding potential rules violations now have a way of completely bypassing the Committee on Infractions and negotiating terms of plea agreements directly with the President.

North Carolina? Oregon? Miami? Are you paying attention? You can now avoid the lengthy, embarrassing and costly NCAA enforcement process by petitioning the NCAA Executive Committee to authorize the President to cut you a deal. No Notice of Allegations to publicize. No perp walk into the Committee on Infractions hearing. No months long wait to learn your fate. No public shame in having the Committee Chairman blast you in a public news conference for such a “shocking” disregard for the rules.

Simply get a deal cut in a matter of days, have the President hold a 3:00 minute news conference and you’re done.

This case should have gone through the process. Let the Enforcement Division rebrand the Freeh Report as its own findings, let Julie Roe-Lache issue the Notice of Allegations, and let Penn State appear before the Committee on Infractions. Such a process may not have yielded the results everyone believes were needed, but the democratically approved process of enforcement would have been followed.

Instead, it’s been shortcut.

Had Penn State appeared before that committee, it’s entirely likely that the SMU Penalty would have been applied. Penn State saw that coming and got a sweetheart plea agreement instead. “Our backs were against the wall,” said interim President Rodney Erickson.

Maybe the NCAA membership is Ok with this, and perhaps legislation will be passed that formalizes this new plea agreement process. That’s the way it should be.

A 20-member group authorizing the President to hold a gun to the head of a member institution and demanding a signature on a consent decree, or else? If you don’t find that troubling, then the terrorists have won.

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